SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Event Reported):
April 7, 2000 (April 3, 2000)
-----------------------------------------------------
TELIGENT, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or other jurisdiction of incorporation or organization)
000-23387 54-18665620
- ----------------------------------- --------------------------------
(Commission File Number) (IRS Employer Identification No.)
8065 Leesburg Pike
Suite 400
Vienna, Virginia 22182
(Address of principal executive offices)
(Zip Code)
Registrant's telephone number, including area code (703) 762-5100
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Exhibits
1.1 Underwriting Agreement, dated as of April 3, 2000, among
Teligent, Inc., Telcom- DTS Investors, L.L.C., Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co., Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Chase Securities Inc., Deutsche Bank
Securities Inc. and Lehman Brothers Inc. and each of the other
Underwriters named in Schedule A thereto.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TELIGENT, INC.
Dated: April 7, 2000 By: /s/ Laurence E. Harris
------------------------------
Name: Laurence E. Harris
Title: Senior Vice President
and General Counsel
ATTORNEY WORK PRODUCT
PRIVILEGED AND CONFIDENTIAL
===============================================================================
TELIGENT, INC.
(a Delaware corporation)
5,000,000 Shares of Class A Common Stock
UNDERWRITING AGREEMENT
Dated: April 3, 2000
===============================================================================
<PAGE>
TELIGENT, INC.
(a Delaware corporation)
5,000,000 Shares of Class A Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
----------------------
April 3, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Chase Securities Inc.
Deutsche Bank Securities Inc.
Lehman Brothers Inc.
as representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Teligent, Inc. a Delaware Corporation (the "Company") and Telcom-DTS
Investors, L.L.C. a Delaware limited liability company and a shareholder
(hereinafter referred to as the "Selling Shareholder") of the Company, confirm
their respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), Goldman, Sachs & Co., Salomon
Smith Barney Inc., Credit Suisse First Boston Corporation, Chase Securities
Inc., Deutsche Bank Securities Inc. and Lehman Brothers Inc. (collectively, the
"Representatives") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), with respect to (i)
the sale by the Company and the Selling Shareholder, acting severally and not
jointly, and the purchase by the Underwriters, acting severally and not jointly,
of 4,000,000 and 1,000,000 shares of Class A Common Stock, par value $0.01 per
share, of the Company ("Common Stock"), respectively, and (ii) the grant by the
Company and the Selling Shareholder, acting severally and not jointly, to the
Underwriters of the
<PAGE>
option described in Section 2(c) hereof to purchase all or any part of 750,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 5,000,000 shares of Common Stock (the "Initial Shares") to be
purchased by the Underwriters and all or any part of the 750,000 shares of
Common Stock subject to the option described in Section 2(c) hereof (the "Option
Shares") are hereinafter called, collectively, the "Shares". The Shares are more
fully described in the Prospectus referred to below.
The price to the public per share and the purchase price per share for
the Shares shall be agreed upon by the Company, the Selling Shareholder and the
Underwriters, and such agreement shall be set forth in a separate written
instrument substantially in the form of Schedule B hereto (the "Price
Determination Agreement"). The Price Determination Agreement may take the form
of an exchange of any standard form of written telecommunication between the
Company, the Selling Shareholder and the Underwriters and shall specify such
applicable information as is indicated in Schedule B hereto. The offering of the
Shares will be governed by this Underwriting Agreement, as supplemented by the
Price Determination Agreement. From and after the date of the execution and
delivery of the Price Determination Agreement, this Underwriting Agreement shall
be deemed to incorporate, and all references herein to "this Agreement" shall be
deemed to include, the Price Determination Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 33-80469),
including a prospectus, relating to certain of its debt and equity securities
(including the Shares) and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "1933 Act").
Such registration statement has been declared effective by the Commission. As
provided in Section 3(a), a prospectus supplement reflecting the terms of the
offering of the Shares and the other matters set forth therein has been filed
pursuant to Rule 424 under the 1933 Act. Such prospectus supplement, is herein
referred to as the "Prospectus Supplement." Such registration statement, as
amended at the date hereof, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "Registration
Statement", and the base prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus".
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing
under the 1934 Act of any document which is
2
<PAGE>
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Underwriters as of the date hereof, as of the
Closing Time referred to in Section 2(d) hereof, and as of each Date of Delivery
(if any) (as defined in Section 2(c)) referred to in Section 2(d) hereof, and
agrees with the Underwriters, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act, and on
the original effective date of the Registration Statement, on the
effective date of the most recent post-effective amendment thereto, if
any, and on the date of the filing by the Company of any annual report
on Form 10-K after the original filing of the Registration Statement,
the Registration Statement complied in all material respects with the
requirements of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations"), and did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and on the original effectiveness date of the
Registration Statement, on the date hereof, and at the Closing Time (as
defined below) (and, if any Option Shares are purchased, at the Date of
Delivery), (A) the Registration Statement and any amendments and
supplements thereto comply and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations, (B)
neither the Registration Statement nor any amendment or supplement
thereto includes or will include an untrue statement of a material fact
or omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
(C) neither the Prospectus nor any amendment or supplement thereto
includes or will include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of you, expressly for use in the
Registration Statement or the Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
3
<PAGE>
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they became effective or at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time (and, if any Option
Shares are purchased, at the Date of Delivery), did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The consolidated financial
statements included in the Registration Statement and the Prospectus or
incorporated or deemed incorporated therein by reference, together with
the related schedules and notes, present fairly the financial position
of the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, Shareholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; and said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
4
<PAGE>
stock other than a dividend paid in kind on February 28, 2000, to the
holders of the Company's 7 3/4% Series A Convertible Preferred Stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Significant Subsidiaries. Each
"significant subsidiary" of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) (each, a "Significant Subsidiary" and,
collectively, the "Significant Subsidiaries") has been duly organized
and is validly existing as a corporation or a limited liability
company, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation or a limited liability company, as the case may be, to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect. Except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock
of each such Significant Subsidiary has been duly authorized and
validly issued, and, in the case of subsidiaries that are corporations,
is fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity other than those
granted to the Company's lenders pursuant to the terms of that certain
Credit Agreement, dated July 2, 1998, among the Company, as Borrower,
Chase Securities, Inc., Goldman Sachs Credit Partners L.P. and TD
Securities (USA), Inc., as Arrangers, Goldman Sachs Credit Partners
L.P., as Syndication Agent, Toronto Dominion (Texas), Inc., as
Documentation Agent and The Chase Manhattan Bank, as Administrative
Agent. None of the outstanding shares of capital stock of any
Significant Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Significant Subsidiary.
The only Significant Subsidiaries of the Company are the Significant
Subsidiaries listed on Schedule C to this agreement.
(viii) Capitalization. The shares of issued and outstanding
capital stock of the Company, including the Shares to be purchased by
the Underwriters from the Selling
5
<PAGE>
Shareholder, have been duly authorized and validly issued and are fully
paid and non-assessable; no holder thereof is or will be subject to
personal liability by reason of being such a holder; and none of the
outstanding shares of capital stock of the Company, including the
Shares to be purchased by the Underwriters from the Selling
Shareholder, was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(x) Authorization and Description of Shares. The Shares to
be sold by the Company and the Selling Shareholder have been duly
authorized and validly issued and are fully paid and non-assessable; no
holder thereof is or will be subject to personal liability solely by
reason of being such a holder.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Shares) and compliance by the
Company with its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of (i) the provisions of the charter or by-laws
of the Company or any subsidiary or (ii) except for such violations
that would not result in a Material Adverse Effect, any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any subsidiary.
6
<PAGE>
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) Absence of Proceedings. Except as set forth in the
Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. Except as described
in the Prospectus, no filing with, or authorization, approval, consent,
license, order, registration,
7
<PAGE>
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder in connection with the consummation of the
transactions contemplated by this Agreement, except such as have
already been obtained or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws.
(xvii) Possession of Licenses and Permits. Except as set forth
in the Prospectus, the Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and
its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect; and neither the Company nor
any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xix) Investment Company Act. None of the Company or any of
its subsidiaries is, or after giving effect to the consummation of
the transactions contemplated herein, will be, an "investment company"
within the meaning of The Investment Company Act of 1940, as amended;
and none of the Company or any of its subsidiaries is directly or
8
<PAGE>
indirectly controlled by, or acting on behalf of any person which is,
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(xx) Registration Rights. Except as described in the
Prospectus, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement.
(xxi) Absence of Manipulation. The Company has not taken and
will not take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Common Stock.
(xxii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxiii) Year 2000. The Company has reviewed its operations and
those of its subsidiaries to evaluate the extent to which the business
or operations of the Company or its subsidiaries have been or will be
affected by the Year 2000 Problem (as defined below). As a result of
such review, (A) the Company has identified and resolved all Year 2000
problems, except where the failure to do so would not have a Material
Adverse Effect; and (B) the Company believes that the suppliers,
vendors, customers or other material third parties used or served by
the Company and its subsidiaries have adequately
9
<PAGE>
addressed the Year 2000 Problem, except to the extent that a failure to
do so would not have a Material Adverse Effect. "Year 2000 Problem"
means any significant risk that the Company's computer hardware or
software applications and those of its subsidiaries (or of any
suppliers, vendors, customers or other material third parties) will
not, in the case of dates or time periods occurring after December 31,
1999, function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000.
(b) Representations and Warranties by the Selling Shareholder. The
Selling Shareholder represents and warrants to the Underwriters as of the date
hereof, as of the Closing Time, and agrees with the Underwriters, as follows:
(i) Accurate Disclosure. To the knowledge of the Selling
Shareholder, the representations and warranties of the Company
contained in Section 1(a) hereof are true and correct; the Selling
Shareholder has reviewed and is familiar with the Registration
Statement and the Prospectus and neither the Prospectus nor any
amendments or supplements thereto includes any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and the Selling Shareholder is
not prompted to sell the Initial Shares to be sold by the Selling
Shareholder hereunder by any information concerning the Company or any
subsidiary of the Company which is not set forth in the Prospectus.
(ii) Authorization of Agreements. The Selling Shareholder has
the full right, power and authority to enter into this Agreement and to
sell, transfer and deliver the Initial Shares to be sold by the Selling
Shareholder hereunder. The execution and delivery of this Agreement and
the sale and delivery of the Initial Shares to be sold by the Selling
Shareholder and the consummation of the transactions contemplated
herein and compliance by the Selling Shareholder with its obligations
hereunder have been duly authorized by the Selling Shareholder and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Initial Shares to be sold by the
Selling Shareholder or any property or assets of the Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which the Selling Shareholder is a party or
by which the Selling Shareholder may be bound, or to which any of the
property or assets of the Selling Shareholder is subject, nor will such
action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of the Selling Shareholder,
if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Selling Shareholder or any of its properties.
10
<PAGE>
(iii) Good and Marketable Title. The Selling Shareholder has
and will at the Closing Time have good and marketable title to the
Initial Shares to be sold by the Selling Shareholder hereunder, free
and clear of any security interest, mortgage, pledge, lien, charge,
claim, equity or encumbrance of any kind, other than pursuant to this
Agreement; and upon delivery of such Initial Shares and payment of the
purchase price therefor as herein contemplated, assuming the
Underwriters have no notice of any adverse claim, the Underwriters will
receive good and marketable title to the Initial Shares purchased by
them from the Selling Shareholder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance
of any kind.
(iv) Absence of Manipulation. The Selling Shareholder has
not taken and will not take, directly or indirectly, any action which
is designed to cause or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Shares.
(v) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by the Selling
Shareholder of its obligations hereunder or in connection with the sale
and delivery of the Initial Shares hereunder or the consummation of the
transactions contemplated by this Agreement, except such as may have
previously been made or obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws.
(vi) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Selling Shareholder will not,
without the prior written consent of the Underwriters, (i) offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the 1933 Act with respect to any
of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to the Initial Shares to be sold hereunder.
(vii) Certificates Suitable for Transfer. Certificates for
all of the Initial Shares to be sold by the Selling Shareholder
pursuant to this Agreement are in suitable form for
11
<PAGE>
transfer by delivery to the Underwriters at the Closing Time or the
Date of Delivery, as the case may be.
(viii) No Association with NASD. Neither the Selling
Shareholder nor any of its affiliates directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with (within the
meaning of Article I, Section 1(m) of the By-laws of the National
Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Underwriters or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to the Underwriters as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Shareholder as such and
delivered to the Underwriters or to counsel for the Underwriters pursuant to the
terms of this Agreement shall be deemed a representation and warranty by the
Selling Shareholder to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a) On the
basis of the representations and warranties herein contained, and after
consultation with the Underwriters as to the maximum number of Shares that may
be sold in the offering at the price set forth in the Price Determination
Agreement, and subject to the terms and conditions herein set forth, the Company
and the Selling Shareholder agree to sell to the Underwriters, and the
Underwriters agree to purchase from the Company and the Selling Shareholder, at
the purchase price per share for the Initial Shares to be agreed upon by the
Company and the Selling Shareholder and by the Underwriters in accordance with
Section 2(b), and set forth in the Price Determination Agreement, the Initial
Shares.
(b) The price to the public per share for the Initial Shares and the
purchase price per share for the Initial Shares to be paid by the Underwriters
shall be agreed upon and set forth in the Price Determination Agreement. In the
event that the Price Determination Agreement has not been executed by the close
of business on the fourteenth business day following the later of the date
hereof and any Rule 462(b) Registration Statement becomes effective, this
Agreement shall terminate forthwith, without liability of any party to any other
party except that Sections 7, 8 and 9 shall remain in effect.
(c) In addition, on the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth, the
Company and the Selling Shareholder, acting severally and not jointly, hereby
grant an option to the Underwriters to purchase up to 600,000 and 150,000,
respectively, additional Option Shares, at the same purchase price per share as
shall be applicable to the Initial Shares. The option hereby granted will expire
30 days after the date of the Price Determination Agreement, and may be
exercised,
12
<PAGE>
in whole or in part (but not more than once), pro rata between the Company and
the Selling Shareholder, only for the purpose of covering over-allotments that
may be made in connection with the offering and distribution of the Initial
Shares upon notice by the Underwriters to the Company and the Selling
Shareholder setting forth the aggregate number of Option Shares as to which the
Underwriters are exercising the option, and the time and date of payment and
delivery thereof. Such time and date of delivery (the "Date of Delivery") shall
be determined by the Underwriters but shall not be later than seven full
business days after the exercise of such options, nor in any event prior to the
Closing Time. The number of Option Shares shall be adjusted for any stock split
if the record date for any stock split occurs prior to the issuance of Option
Shares on the exercise of the over-allotment option.
(d) Payment of the purchase price for, and delivery of certificates
for, the Initial Shares shall be made at the offices of Shearman & Sterling, 599
Lexington Avenue, New York, New York 10022, or at such other place as shall be
agreed upon by the Company, the Selling Shareholders and you, at 10:00 A.M. on
the third full business day after execution of the Price Determination Agreement
(or, if pricing of the Shares occurs after 4:30 P.M. Eastern time, on the fourth
full business day thereafter) (unless, in either case, postponed pursuant to
Section 9 or 10), or at such other time not more than ten full business days
thereafter as you, the Company and the Selling Shareholders shall determine
(such date and time of payment and delivery being herein called the "Closing
Time"). In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Shares shall be made at the offices of Shearman
& Sterling set forth above, or at such other place as the Company, the Selling
Shareholder and the Underwriters shall determine, on the Date of Delivery as
specified in the notice from you to the Company and the Selling Shareholder.
Payment shall be made to the Company and the Selling Shareholder by wire
transfer in same day funds against delivery to the Underwriters for the
Underwriters' accounts, of certificates for the Shares to be purchased by them.
(e) Certificates for the Initial Shares and Option Shares to be
purchased by the Underwriters shall be in such denominations and registered in
such names as the Underwriters may request in writing at least two full business
days before the Closing Time or the Date of Delivery, as the case may be. The
certificates for the Initial Shares and Option Shares will be made available in
New York City for examination and packaging by you not later than 10:00 A.M. on
the business day prior to the Closing Time or the Date of Delivery, as the case
may be.
(f) It is understood that the Underwriters have agreed to accept for
their account delivery of, and receipt for, the Shares that they have agreed to
purchase and to make payment therefor.
13
<PAGE>
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriters as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will notify the
Underwriters immediately, and confirm the notice in writing, (A) when
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus, any amended Prospectus
or any document that would as a result thereof be incorporated by
reference in the Prospectus shall have been filed, (B) of the receipt
of any comments from the Commission, (C) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, and (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file
such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Underwriters notice of its intention to file or prepare any amendment
to the Registration Statement or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise, and will furnish the Underwriters
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or
use any such document to which the Underwriters or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to Merrill Lynch and counsel for Merrill
Lynch, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will
also deliver to Merrill Lynch, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits) for Merrill Lynch. The copies of the
Registration Statement and each amendment thereto furnished to Merrill
Lynch will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
14
<PAGE>
(d) Delivery of Prospectus. The Company has delivered to
Merrill Lynch, without charge, as many copies of each preliminary
prospectus as Merrill Lynch reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to Merrill Lynch, without charge,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus
(as amended or supplemented) as Merrill Lynch may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to
Merrill Lynch will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Shares as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Shares, any event
shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as
the Underwriters may reasonably request.
(f) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(g) State Securities Laws. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the Shares
for offering and sale under the applicable securities laws of such
states and other jurisdictions as you may designate and to maintain
such qualifications in effect for a period of not less than one year
from the date hereof; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer
15
<PAGE>
in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Shares have been qualified as above provided.
The Company will also supply you with such information as is necessary
for the determination of the legality of the Shares for investment
under the laws of such jurisdictions as you may request.
(h) Listing. The Company will use its best efforts to effect
and maintain the quotation of the Shares on the Nasdaq National Market
and will file with the Nasdaq National Market all documents and notices
required by the Nasdaq National Market of companies that have
securities that are traded in the over-the-counter market and
quotations for which are reported by the Nasdaq National Market.
(i) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Company will not, without the
prior written consent of Merrill Lynch, on behalf of the several
Underwriters, (i) directly or indirectly, offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock or file any registration statement under the 1933 Act with
respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall
not apply to (A) the Shares to be sold hereunder, (B) any shares of
Common Stock issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof
and referred to in the Prospectus, (C) any shares of Common Stock
issued or options to purchase Common Stock granted pursuant to existing
employee benefit plans of the Company referred to in the Prospectus,
(D) any shares of Common Stock issued pursuant to any nonemployee
director stock plan or dividend reinvestment plan, (E) the Company's
stock swap with ICG Communications, Inc., (F) the two-for-one split of
the Company's Common Stock, (G) payments of dividends on the Company's
outstanding 7 3/4% Series A Preferred Stock, and (H) any acquisitions
of the stock or assets of complimentary businesses, which acquisitions
are not required to be filed with the Commission on Form 8-K, where the
consideration therefor is payable, partially or in whole, in Common
Stock, and where the recipients of such Common Stock agree not to sell
such Common Stock until the expiration of the Company's 90 day lock-up.
(j) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all
16
<PAGE>
documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Selling Shareholder will pay or
cause to be paid all expenses incident to the performance of their obligations
under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement and such other documents as
may be required in connection with the purchase, sale or delivery of the Shares,
(iii) the preparation, issuance and delivery of the certificates for the Shares
to the Underwriters, including any stock or other transfer taxes and any stamp
or other duties payable upon the sale, issuance or delivery of the Shares to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (v) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, and
of the Prospectus and any amendments or supplements thereto, (vi) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (vii) the fees and expenses of any transfer
agent or registrar for the Shares, (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Shares and (ix) the fees and expenses
incurred in connection with the inclusion of the Shares in the Nasdaq National
Market.
(b) Expenses of the Selling Shareholder. The Selling Shareholder will
pay all expenses incident to the performance of its obligations under, and the
consummation of the transactions contemplated by this Agreement, including (i)
any stamp duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Shares to the Underwriters, and (ii) the fees and disbursements
of its counsel, accountants and other advisors.
(c) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company and the Selling Shareholder shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholder may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the
17
<PAGE>
Company and the Selling Shareholder contained in Section 1 hereof or in
certificates of any officer of the Company or any subsidiary of the Company or
on behalf of the Selling Shareholder delivered pursuant to the provisions
hereof, to the performance by the Company and the Selling Shareholder of their
respective covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters.
(b) Opinions of Counsel for Company. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of
Closing Time, of (i) Cravath, Swaine & Moore, counsel for the Company,
to the effect set forth in Exhibit A hereto and to such further effect
as counsel to the Underwriters may reasonably request, and (ii)
Laurence E. Harris, Esq., General Counsel for the Company, to the
effect set forth in Exhibit B, Exhibit C and Exhibit D hereto,
respectively, and to such further effect as counsel to the Underwriters
may reasonably request, each in form and substance satisfactory to
counsel for the Underwriters.
(c) Opinion of Counsel for the Selling Shareholder. At
Closing Time, the Underwriters shall have received the favorable
opinion, dated as of Closing Time, of Hal Perkins, counsel for the
Selling Shareholder, in form and substance satisfactory to counsel for
the Underwriters, to the effect set forth in Exhibit E hereto and to
such further effect as counsel to the Underwriters may reasonably
request.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling, counsel for the Underwriters, in
such form as is reasonably acceptable to the Underwriters. In giving
such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
Underwriters. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the
18
<PAGE>
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Underwriters shall have
received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(f) Certificate of Selling Shareholder. At Closing Time, the
Underwriters shall have received a certificate of an Attorney-in-Fact
on behalf of the Selling Shareholder, dated as of Closing Time, to the
effect that (i) the representations and warranties of the Selling
Shareholder contained in Section 1(b) hereof are true and correct in
all respects with the same force and effect as though expressly made at
and as of Closing Time and (ii) the Selling Shareholder has complied in
all material respects with all agreements and all conditions on its
part to be performed under this Agreement at or prior to Closing Time.
(g) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the Underwriters shall have received from Ernst &
Young LLP a letter dated such date, in form and substance satisfactory
to the Underwriters, to the statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to
the financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the
Underwriters shall have received from Ernst & Young LLP, a letter,
dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (g) of
this Section, except that the specified date referred to shall be a
date not more than three business days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Shares shall
have been approved for inclusion in the Nasdaq National Market, subject
only to official notice of issuance.
(j) Lock-up Agreements. At the date of this Agreement, in
addition to the restrictions for sales of securities by the Company as
contemplated in Section 3(i), the Underwriters shall have received an
agreement substantially in the form of Exhibit F hereto signed by the
persons listed on Schedule D hereto.
19
<PAGE>
(k) Conditions to Purchase of Option Shares. In the event that
the Underwriters exercise their option provided in Section 2(c) hereof
to purchase all or any portion of the Option Shares, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company and any
subsidiary of the Company hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the
Underwriters shall have received:
(i) Officers' Certificate. A certificate, dated such
Date of Delivery, of the President or a Vice President of the
Company and of the chief financial or chief accounting officer
of the Company confirming that the certificate delivered at
Closing Time pursuant to Section 5(e) hereof remains true and
correct as of such Date of Delivery.
(ii) Opinions of Counsel for Company. The favorable
opinion of (i) Cravath, Swaine & Moore, counsel for the
Company, and (ii) Laurence E. Harris, General Counsel to the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Shares to be purchased on such Date of Delivery and otherwise
to the same effect as the opinions required by Section 5(b)
hereof.
(iii) Opinion of Counsel for Underwriters. The
favorable opinion of Shearman & Sterling, counsel for the
Underwriters, dated such Date of Delivery, relating to the
Shares to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(d)
hereof.
(iv) Bring-down Comfort Letter. A letter from Ernst &
Young LLP, in form and substance satisfactory to the
Underwriters and dated such Date of Delivery, substantially in
the same form and substance as the letter furnished to the
Underwriters pursuant to Section 5(h) hereof, except that the
"specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to
such Date of Delivery.
(l) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of
enabling them to pass upon the sale of the Shares as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
and the Selling Shareholder in connection with the sale of the Shares
as herein contemplated shall be satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
20
<PAGE>
(m) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of the Shares on a Date of Delivery which is after the Closing
Time, the obligations of the Underwriters to purchase the relevant
Shares, may be terminated by the Underwriters by notice to the Company
at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except
that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless the Underwriters and each person, if any, who controls the
Underwriters within the meaning of Section 15 of the 1933 Act to the extent and
in the manner set forth in clauses (i), (ii) and (iii) below. In addition, the
Selling Shareholder agrees (but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) in reliance upon and in conformity with
written information furnished by such Selling Shareholder expressly for use in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), a copy of
which written information shall have been previously delivered to you), agrees
to indemnify and hold harmless the Underwriters and each person, if any, who
controls the Underwriters within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, and all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of an untrue statement or alleged
untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company and the Selling
Shareholder; and
21
<PAGE>
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, reasonable fees and
disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto); provided further that
the foregoing indemnification with respect to any preliminary prospectus shall
not inure to the benefit of the Underwriters (or any person controlling such
Underwriters) from whom the person asserting any such losses, claims, damages or
liabilities purchased any of the Shares if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the Underwriters
to such person, if such is required by law, at or prior to the written
confirmation of the sale of such Shares to such person and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability; and provided further that the liability of the
Selling Shareholder pursuant to this Section 6 is limited to the amount of the
net proceeds of the offering of the Shares (after deducting the underwriting
discount, but before deducting expenses) received by such Selling Shareholder.
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of the
Underwriters or who controls the Underwriters within the meaning of Section 15
of the 1933 Act and who, at the date of this Agreement, is a director or officer
of the Company or controls the Company within the meaning of Section 15 of the
1933 Act, such indemnity agreement is subject to the undertaking of the Company
in the Registration Statement under Item 17 thereof.
(b) The Underwriters agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act and the Selling Shareholder and each person, if
any, who controls the Selling Shareholder within the meaning of Section 15 of
the 1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity agreement in Section 6(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
22
<PAGE>
conformity with written information furnished to the Company by the Underwriters
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information, or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) The Company agrees to indemnify and hold harmless, to the extent
permitted by law, the Selling Shareholder, its directors and officers or general
and limited partners (and the directors and officers thereof), and each other
person, if any, who controls the Selling Shareholder within the meaning of the
1933 Act, against any and all losses, claims, damages or liabilities, joint or
several, and expenses (including any amounts paid in any settlement effected
with the Company's consent) to which the Selling Shareholder, any such director
of officer or general or limited partner or controlling person may become
subject under the 1933 Act, common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, and all documents
incorporated therein by reference, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, together
with the documents incorporated by reference therein (as amended or supplemented
if the Company shall have filed with the Commission any amendment thereof or
supplement thereto), if used prior to the effective date of the Registration
Statement, or contained in the Prospectus (as amended or supplemented if the
Company shall have filed with the Commission any amendment or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (iii) any violation by the Company of any federal, state or common
law rule or regulation applicable to the Company and relating to action required
of or inaction by the Company in connection with the offering, and the Company
will reimburse the Selling Shareholder and each such director, officer, general
or limited partner, and controlling person for any legal or any other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, liability, action or proceeding; provided that the Company
shall not be liable to the Selling Shareholder or any such director, officer,
general or limited partner or controlling person in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement (or any amendment or supplement thereto), including the
Rule 430A Information, or in any such preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Selling
Shareholder or any such director, officer, general or limited partner or
controlling person, specifically stating that it is for use in the preparation
thereof.
23
<PAGE>
(d) The Selling Shareholder agrees to indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 6(c)) the Company
and its directors and officers and each person controlling the Company within
the meaning of the 1933 Act with respect to any statement or alleged statement
in or omission or alleged omission from the Registration Statement (or any
amendment or supplement thereto), including the Rule 430A Information, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), if such statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company or its representatives by or on behalf of the Underwriters
specifically stating that it is for use in the preparation of the Registration
Statement (or any amendment or supplement thereto), including the Rule 430A
Information, preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or a document incorporated by reference into any of the
foregoing; provided, however, that the liability of the Selling Shareholder
pursuant to this Section 6(d) is limited to the proceeds received by the Selling
Shareholder from the sale of the Shares pursuant to this Agreement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any of its respective directors,
officers, general or limited partners or controlling persons and shall survive
the transfer of the Shares by the Selling Shareholder.
(e) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying party or parties be liable for the fees and expenses of more than
one counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or are in addition to those available
to such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in Section
6 is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company, the Selling Shareholder
and the Underwriters shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
incurred by the Company, the Selling Shareholder and the Underwriters, as
incurred, in such proportions
24
<PAGE>
that (a) the Underwriters is responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus, bears to the offering price appearing thereon and (b) the Company
and the Selling Shareholder are severally responsible for the balance on the
same basis as each of them would have been obligated to provide indemnification
pursuant to Section 6; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls the Underwriters within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Underwriters, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company or the Selling Shareholder
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company or the Selling Shareholder, as the case may be.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and other
statements of the Selling Shareholder and the Company or their respective
officers set forth in or made pursuant to this Agreement will remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Selling Shareholder, the Company, the Underwriters or any person
who controls the Selling Shareholder, the Company or the Underwriters within the
meaning of Section 15 of the 1933 Act and will survive delivery of and payment
for the Shares.
SECTION 9. Termination of Agreement. (a) Termination; General. The
Underwriters may terminate this Agreement, by notice to the Company and the
Selling Shareholder, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Shares or to enforce contracts for the
sale of the Shares, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the NASDAQ National
Market, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the NASDAQ National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
25
<PAGE>
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by the Selling Shareholder or the Company. (a) If
the Selling Shareholder shall fail at Closing Time or at a Date of Delivery to
sell and deliver the number of Shares which the Selling Shareholder is obligated
to sell hereunder, then the Underwriters may, by providing notice to the Company
and the Selling Shareholder, terminate this Agreement without any liability on
the part of any non-defaulting party except that the provisions of Sections 1,
4, 6, 7 and 8 shall remain in full force and effect. No action taken pursuant to
this Section shall relieve the Selling Shareholder so defaulting from liability
in respect of such default.
In the event of a default by the Selling Shareholder as referred to in
this Section, the Underwriters and the Company shall have the right to postpone
Closing Time or the relevant Date of Delivery for a period not exceeding seven
days in order to effect any required change in the Registration Statement or
Prospectus or in any other documents or arrangements.
(b) If the Company shall fail at Closing Time or at a Date of Delivery
to sell the number of Shares that it is obligated to sell hereunder, then this
Agreement shall terminate without any liability on the part of any
non-defaulting party; provided, however, that the provisions of Sections 1, 4,
6, 7 and 8 shall remain in full force and effect. No action taken pursuant to
this Section shall relieve the Company from liability in respect of such
default.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, at North Tower, World Financial Center, New York, New York 10281,
attention of Michael Purves; notices to the Company shall be directed to it at
8065 Leesburg Pike, Suite 400, Vienna, VA 22182, attention of Laurence E.
Harris; with copies to Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth
Avenue, New York NY 10019, attention of Robert Rosenman; and notices to the
Selling Shareholder shall be directed to Telcom-DTS Investors, L.L.C., 200 N.
Union Street, Suite 300, Alexandria, VA 22201, attention of Dr. Rajendra Singh.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company, the Selling Shareholder and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Selling Shareholder and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable
26
<PAGE>
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters, the
Company and the Selling Shareholder and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Shares from the Underwriters shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
27
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholder a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters,
the Company and the Selling Shareholder in accordance with its terms.
Very truly yours,
TELIGENT, INC.
By /s/ Laurence E. Harris
-------------------------------
Name: Laurence E. Harris
Title: Senior Vice President
and General Counsel
TELCOM-DTS INVESTORS, L.L.C.
By /s/ Laurence E. Harris
-------------------------------
Name: Laurence E. Harris
Title: Attorney-in-Fact
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
/s/ Michael Purves
-------------------------------------
Name: Michael Purves
Title: Director
28
<PAGE>
SCHEDULE A
Total Number of
Initial Shares to Be
Underwriter Purchased
- ----------- --------------------
Merrill Lynch, Pierce, Fenner & Smith 994,400
Incorporated
Goldman, Sachs & Co. 858,800
Salomon Smith Barney Inc. 858,800
Credit Suisse First Boston Corporation 858,800
Chase Securities Inc. 316,400
Deutsche Bank Securities Inc. 316,400
Lehman Brothers Inc. 316,400
Friedman, Billings, Ramsey & Co., Inc. 240,000
FleetBoston Robertson Stephens Inc. 40,000
PaineWebber Incorporated 40,000
Morgan Stanley & Co. Incorporated 40,000
Prudential Securities Incorporated 40,000
BB&T Capital Markets, a division of Scott 40,000
& Stringfellow
Ladenburg Thalmann & Co. Inc. 40,000
TOTAL: 5,000,000
Sch A-1
<PAGE>
SCHEDULE B
Price Determination Agreement
Teligent, Inc.
5,000,000 Shares of Common Stock
1. The initial public offering price per share for the Shares, determined
as provided in said Section 2, shall be $50.00.
2. The purchase price per share for the Shares to be paid by the
Underwriters shall be $47.87, being an amount equal to the initial public
offering price set forth above less $2.13 per share; provided that the purchase
price per share for any Option Shares purchased upon the exercise of the
over-allotment option described in Section 2(c) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial Shares but not payable on the Option Shares.
Sch B-1
<PAGE>
SCHEDULE C
List of Significant Subsidiaries
Teligent Services, Inc.
Teligent Telecommunications, L.L.C.
Teligent Communications, L.L.C.
Teligent of Virginia, Inc.
Teligent License Company I, L.L.C.
Teligent License Company II, L.L.C.
FirstMark Communications, Inc.
Association Communications, Inc.
OMC Communications, Inc.
Easton Telecom Services, Inc.
BackLink, L.L.C.
JTel, L.L.C.
KatLink, L.L.C.
Associated Communications Deutschland GmbH
Sch C-1
<PAGE>
SCHEDULE D
List of Persons and Entities
Subject to Lock-up
1. Liberty Media Corporation
2. TelcomVentures, L.L.C.
3. Nippon Telegraph and Telephone Corporation
4. Microsoft Corporation
5. Hicks, Muse, Tate & Furst Incorporated
6. Robert R. Bennett
7. David J. Berkman
8. Thomas O. Hicks
9. Gary S. Howard
10. Alex J. Mandl
11. Tetsuro Mikami
12. Dr. Rajendra Singh
13. Neera Singh
14. Kirby G. Pickle, Jr.
15. Laurence E. Harris
16. Steven F. Bell
17. Cindy L. Tallent
Sch D-1
<PAGE>
SCHEDULE E
List of Licenses
Teligent, Inc. Authorizations
As of April 5, 2000
ITC 97-783: Global Facilities-Based/Global Resale Services, effective January
23, 1998. (International Section 214 Authority)
ISP-ISP-19980818-00008: Authority to increase indirect WTO member foreign
ownership of Teligent's subsidiaries up to a 49.9 percent non-controlling level.
KS2XAT: Experimental Special Temporary Authority to operate non-type accepted 24
GHz DEMS equipment, effective December 9, 1998 for a term of (6) six months. On
June 9, 1999, Teligent filed for an additional (6) six month extension.*
WA9XFS: Experimental Special Temporary Authority to operate type accepted 38 GHz
equipment for retrofitting to 24GHz operations, effective June 8, 1999 for a
term of (6) six months.*
[FN]
* This authorization is held in the name of Teligent, Inc. and its wholly
owned subsidiaries Teligent License Company I, L.C.C. and Teligent License
Company II, L.L.C.
</FN>
Sch E-1
<PAGE>
Teligent, Inc. and its Subsidiaries Point-to-Point Microwave Licenses
---------------------------------------------------------------------
Call Sign City State
--------- ---- -----
WHB513 Ontario CA
WLC649 Los Angeles CA
WLC650 Los Angeles CA
WLC651 Inglewood CA
WPOT981 Emeryville CA
WLM499 Anaheim CA
WLM500 Hacienda Heights CA
WLM501 Los Angeles CA
WPOT982 Oakland CA
WLU916 San Dimas CA
WMJ350 Irwindale CA
WMT250 San Dimas CA
WMW590 Santa Monica CA
WMW591 Los Angeles CA
WPNL484 Hollywood CA
WPNL495 Culver City CA
WPNN539 San Jose CA
WPNN540 San Jose CA
WPNN541 San Jose CA
WPNN542 San Jose CA
WPOU563 San Jose CA
WPNN591 San Jose CA
WPOU353 Denver CO
WPNN537 Lakewood CO
WPOU349 Lakewood CO
WPNN538 Lakewood CO
WPOU350 Lakewood CO
WPOU351 Lakewood CO
WPOU352 Lakewood CO
WPNL279 Jacksonville FL
WPNN520 Jacksonville FL
WPNN521 Boca Raton FL
WPNN522 West Palm Beach FL
WPNN523 West Palm Beach FL
WPNN524 Boca Raton FL
WPNN525 Boca Raton FL
Sch E-2
<PAGE>
Call Sign City State
--------- ---- -----
WPNN526 Boca Raton FL
WPNN527 Jacksonville FL
WPNN528 Jacksonville FL
WPNN529 Orlando FL
WPNN530 Orlando FL
WPNN531 Orlando FL
WPNN532 Orlando FL
WPNN533 Altamonte Springs FL
WPNN534 Orlando FL
WPNN535 Altamonte Springs FL
WPNN536 Altamonte Springs FL
WPOS419 Jacksonville FL
WPOU281 Orlando FL
WPOU749 New Oreleans LA
WPOT983 Metiarie LA
WPOU554 Boston MA
WPNN588 Boston MA
WPOR752 Boston MA
WPOR753 Charlestown MA
WPNN543 New York NY
WPOU347 New York NY
WPOU348 New York NY
WPOU708 Philadelphia PA
WPOU709 Philadelphia PA
WPNL278 Austin TX
WPOU562 San Antonio TX
WPNN587 San Antonio TX
WPOR719 Dallas TX
WPOR720 Dallas TX
WPOS428 Austin TX
WPOS429 San Antonio TX
WPOS430 San Antonio TX
WPOS431 Austin TX
WPOS432 Austin TX
WPOS433 Austin TX
WPOS434 San Antonio TX
WPOS435 San Antonio TX
WPOS436 Austin TX
WPOS437 Austin TX
WPOS438 Austin TX
WPOS439 Austin TX
Sch E-3
<PAGE>
Call Sign City State
--------- ---- -----
WPOU756 Houston TX
WPOU757 Houston TX
WPOS420 Milwaukee WI
WPOS421 Milwaukee WI
WPOS422 Milwaukee WI
WPOS423 Milwaukee WI
WPOS424 Milwaukee WI
WPOS425 Milwaukee WI
WPOS426 Milwaukee WI
WPOS427 Milwaukee WI
WPOL414 Atlanta GA
WPOL415 Atlanta GA
WPOL416 Atlanta GA
WPOL417 Atlanta GA
WPOL418 Atlanta GA
WPOL419 Atlanta GA
WPOL420 Atlanta GA
WPOL421 Atlanta GA
WPOL422 Atlanta GA
WPOL430 Detroit MI
WPOL431 Detroit MI
WPOL432 Detroit MI
WPOL443 Indianapolis IN
WPOL444 Indianapolis IN
WPOL445 Indianapolis IN
WPOL446 Indianapolis IN
WPOL449 Indianapolis IN
WPOL450 Indianapolis IN
WPOL451 Indianapolis IN
WPOL456 Hinsdale IL
WPOL457 Hinsdale IL
WPOL458 Hinsdale IL
WPOL463 Laurel MD
WPOL464 Laurel MD
WPOL476 Detroit MI
WPOL516 New York NY
WPOL517 New York NY
WPOL518 Nokesville TN
WPOL519 Nokesville TN
WPOL536 Bellevue WA
Sch E-4
<PAGE>
Call Sign City State
--------- ---- -----
WPOL537 Bellevue WA
WPOL538 Bellevue WA
WPOL539 Bellevue WA
WPOL540 Bellevue WA
WPOL541 Bellevue WA
WPOL542 Bellevue WA
WPOL543 Bellevue WA
WPOL544 Bellevue WA
WPOL545 Greenbelt MD
WPOL546 Greenbelt MD
WPOL604 Atlanta GA
WPOL605 Atlanta GA
WPOL606 Atlanta GA
WPOL607 Atlanta GA
WPOL608 Atlanta GA
WPOL609 Atlanta GA
WPOL610 Atlanta GA
WPOL611 Atlanta GA
WPOL612 Clearwater FL
WPOL613 Clearwater FL
WPOL614 Phoenix AZ
WPOL615 Greenbelt MD
WPOL616 Greenbelt MD
WPOL617 Greenbelt MD
WPOL619 Richmond VA
WPOL620 Richmond VA
WPOL621 Richmond VA
WPOL622 Richmond VA
WPOL625 Atlanta GA
WPOL626 Atlanta GA
WPOL627 Atlanta GA
WPOL628 Atlanta GA
WPOL629 Atlanta GA
WPOL630 New York NY
WPOL631 New York NY
WPOL632 New York NY
WPOL636 Baltimore MD
WPOL637 Richmond VA
WPOL640 Englewood CO
WPOL641 Denver CO
WPOL660 Landover MD
Sch E-5
<PAGE>
Call Sign City State
--------- ---- -----
WPOL687 Phoenix AZ
WPOL688 Phoenix AZ
WPOL690 Philadelphia PA
WPOL691 Philadelphia PA
WPOL692 Philadelphia PA
WPOL693 Phoenix AZ
WPOL694 Phoenix AZ
WPOL695 Phoenix AZ
WPOL700 Atlanta GA
WPOL701 Atlanta GA
WPOL703 Houston TX
WPOL704 Houston TX
WPOL705 Houston TX
WPOL787 Torrance CA
WPOL810 Detroit MI
WPOL811 Gardena CA
WPOL814 Atlanta GA
WPOL874 San Jose CA
WPOL876 San Jose CA
WPOL877 San Jose CA
WPOL910 Portland OR
WPOL911 Portland OR
WPOL964 Los Angeles CA
WPOL965 Los Angeles CA
WPOL966 Los Angeles CA
WPOL967 Indianapolis IN
WPOL968 Indianapolis IN
WPOL969 Indianapolis IN
WPOL970 Indianapolis IN
WPOL973 Landover MD
WPOL980 Wilmington DE
WPOL981 Wilmington DE
WPOM200 Torrance CA
WPOM201 Gardena CA
WPOM202 Lawndale CA
WPOM204 Baltimore MD
WPOM244 San Diego CA
WPOM245 San Diego CA
WPOM246 San Diego CA
WPOM247 San Diego CA
WPOM248 San Diego CA
Sch E-6
<PAGE>
Call Sign City State
--------- ---- -----
WPOM249 San Diego CA
WPOM256 Seattle WA
WPOM257 Seattle WA
WPOM258 Seattle WA
WPOM259 Brentwood TN
WPOM260 Brentwood TN
WPOM263 Baltimore MD
WPOM286 San Diego CA
WPOM287 San Diego CA
WPOM288 Seattle WA
WPOM289 Seattle WA
WPOM290 Seattle WA
WPOM291 Seattle WA
WPOM292 Seattle WA
WPOM293 Seattle WA
WPOM294 Seattle WA
WPOM322 Phoenix AZ
WPOM323 Houston TX
WPOM324 Phoenix AZ
WPOM338 Seattle WA
WPOM572 Indianapolis IN
WPOM573 Hartford CT
WPOM580 Hartford CT
WPOM581 Hartford CT
WPOM582 Hartford CT
WPOM583 Wilmington DE
WPOM584 Wilmington DE
WPOM585 San Francisco CA
WPOM586 San Francisco CA
WPOM588 Lanham MD
WPOM589 Atlanta GA
WPOM590 Indianapolis IN
WPOM614 Los Angeles CA
WPOM615 Los Angeles CA
WPOM616 Los Angeles CA
WPOM617 Los Angeles CA
WPOM618 Los Angeles CA
WPOM619 Evanston IL
WPOM620 Blue Bell PA
WPOM642 San Diego CA
WPOM643 San Diego CA
Sch E-7
<PAGE>
Call Sign City State
--------- ---- -----
WPOM644 San Diego CA
WPOM645 San Diego CA
WPOM646 San Diego CA
WPOM647 San Diego CA
WPOM648 San Diego CA
WPOM652 Nashville TN
WPOM653 Nashville TN
WPOM654 Nashville TN
WPOM661 Nashville TN
WPOM662 Nashville TN
WPOM672 San Jose CA
WPOM673 Philadelphia PA
WPOM674 Philadelphia PA
WPOM702 Norristown PA
WPOM703 Bridgeport CA
WPOM704 Monterrey Park CA
WPOM706 Monterrey Park CA
WPOM707 Los Angeles CA
WPOM708 Minneapolis MN
WPOM709 King of Prussia PA
WPOM710 King of Prussia PA
WPOM711 King of Prussia PA
WPOM714 Dallas TX
WPOM715 Dallas TX
WPOM732 Wilmington DE
WPOM733 Wilmington DE
WPOM734 Wilmington DE
WPOM735 Wilmington DE
WPOM736 Wilmington DE
WPOM737 Wilmington DE
WPOM738 Wilmington DE
WPOM739 Wilmington DE
WPOM740 Chicago IL
WPOM741 Chicago IL
WPOM742 Chicago IL
WPOM761 Wayne PA
WPOM762 Chicago IL
WPOM763 Irving TX
WPOM764 Dallas TX
WPOM767 Dallas TX
WPOM768 Dallas TX
Sch E-8
<PAGE>
Call Sign City State
--------- ---- -----
WPOM769 Dallas TX
WPOM770 Dallas TX
WPOM771 Dallas TX
WPOM772 Dallas TX
WPOM773 Dallas TX
WPOM774 Dallas TX
WPOM799 San Diego CA
WPOM800 San Diego CA
WPOM801 Blue Bell PA
WPOM802 Los Angeles CA
WPOM803 Marina Del Rey CA
WPOM804 Marina Del Rey CA
WPOM805 Dallas TX
WPOM838 Dallas TX
WPOM839 Dallas TX
WPOM840 Dallas TX
WPOM841 Dallas TX
WPOM842 Rosemont IL
WPOM843 Des Plaines IL
WPOM844 Des Plaines IL
WPOM847 Kansas City MO
WPOM857 Homewood IL
WPOM859 Homewood IL
WPOM860 Homewood IL
WPOM861 Homewood IL
WPOM862 Homewood IL
WPOM863 Homewood IL
WPOM864 Wilmington DE
WPOM865 Wilmington DE
WPOM866 Wilmington DE
WPOM867 San Diego CA
WPOM868 Kansas City MO
WPOM869 Glendale CA
WPOM870 Glendale CA
WPOM871 Glendale CA
WPOM872 Glendale CA
WPOM912 Kansas City MO
WPOM914 Wilmington DE
WPOM915 Wilmington DE
WPOM916 Wilmington DE
WPOM917 Wilmington DE
Sch E-9
<PAGE>
Call Sign City State
--------- ---- -----
WPOM918 Wilmington DE
WPOM919 Wilmington DE
WPOM920 Wilmington DE
WPOM921 Wilmington DE
WPOM922 Wilmington DE
WPOM923 Wilmington DE
WPOM924 Seattle WA
WPOM925 Hartford CT
WPOM947 San Francisco CA
WPOM949 Wilmington DE
WPOM955 Baltimore MD
WPOM956 Baltimore MD
WPOM957 Baltimore MD
WPOM967 Wilmington DE
WPOM968 Wilmington DE
WPOM969 Wilmington DE
WPOM970 Wilmington DE
WPON214 Tempe AZ
WPON215 Evanston IL
WPON216 St Paul MN
WPON217 Plymouth Meeting PA
WPON218 Hartford CT
WPON219 Hartford CT
WPON220 Hartford CT
WPON221 Wilmington DE
WPON266 Baltimore MD
WPON282 San Francisco CA
WPON283 San Francisco CA
WPON284 San Francisco CA
WPON285 San Francisco CA
WPON286 San Francisco CA
WPON287 San Francisco CA
WPON288 San Francisco CA
WPON289 Baltimore MD
WPON297 Phoenix AZ
WPON379 King of Prussia PA
WPON380 Farmington CT
WPON381 Farmington CT
WPON382 Farmington CT
WPON383 Glendale CA
WPON384 Clearwater FL
Sch E-10
<PAGE>
Call Sign City State
--------- ---- -----
WPON385 Baltimore MD
WPON417 Baltimore MD
WPON418 Baltimore MD
WPON419 Baltimore MD
WPON420 Philadelphia PA
WPON421 Philadelphia PA
WPON422 Clearwater FL
WPON432 Portland OR
WPON433 Portland OR
WPON434 Portland OR
WPON440 Seattle WA
WPON443 Portland OR
WPON444 Portland OR
WPON446 Portland OR
WPON449 Kansas City MO
WPOQ815 Union City NJ
WPOQ820 Boston MA
WPOQ821 Boston MA
WPOS908 Wilmington DE
WPOS909 Wilmington DE
WPOS910 Wilmington DE
WPOS911 Houston TX
WPOS912 Houston TX
WPOS913 Houston TX
WPOS954 Houston TX
WPOT470 Houston TX
WPOT471 Washington DC
WPOT472 Washington DC
WPOT997 Phoenix AZ
WPOU557 Washington DC
WPOU728 Northbrook IL
WPOU729 Northbrook IL
WPOU730 Northbrook IL
WPOU731 Northbrook IL
WPOU732 Northbrook IL
WPOU738 San Jose CA
WPOU739 San Jose CA
WPOU740 San Jose CA
WPOV286 Portland OR
WPOV287 Portland OR
WPOV288 Portland OR
Sch E-11
<PAGE>
Call Sign City State
--------- ---- -----
WPOV289 Portland OR
WPOV290 Portland OR
WPOV291 Portland OR
WPOV292 Portland OR
WPOV600 Bronx NY
WPOV601 Fort Lee NJ
WPOV602 New York NY
WPOV603 Bronx NY
WPOV604 Portland OR
WPOV605 Portland OR
WPOV606 Portland OR
WPOV607 Portland OR
WPOV608 Portland OR
WPOV609 Portland OR
WPOV610 Phoenix AZ
WPOV611 Phoenix AZ
WPOV612 Phoenix AZ
WPOV613 Phoenix AZ
WPOV614 New York NY
WPOM428 Tampa FL
WPOM429 Tampa FL
WPOM430 Tampa FL
WPOM634 Columbus OH
WPOM635 Columbus OH
WPOM636 Houston TX
WPOM637 Houston TX
WPOM638 Houston TX
WPOM524 Tampa FL
WPOM525 Tampa FL
WPON302 Tampa FL
WPON304 Tampa FL
WPON404 Cleveland OH
WPON405 Woodmere OH
WPON406 Cleveland OH
WPON407 Cleveland OH
WPON408 Cleveland OH
WPON409 Cleveland OH
WPON410 Cleveland OH
WPON411 Beachwood OH
WPON412 Beachwood OH
WPON413 Beachwood OH
Sch E-12
<PAGE>
Call Sign City State
--------- ---- -----
WPON414 Beachwood OH
WPON473 Tampa FL
Sch E-13
<PAGE>
Teligent License Company I, L.L.C. Point-to-Multipoint DEMS Licenses
--------------------------------------------------------------------
Market 24 Ghz Channel(s) Call Sign
------ ----------------- ---------
New York, NY 37 WMT315
35, 38 &39 WMT307
Los Angeles, CA 39 WMT337
36 WMT314
Chicago, IL 35, 37, 38 & 39 WMT332
36 WMT318
Philadelphia, PA 35, 38 & 39 WMT339
37 WMT313
Detroit, MI 35, 37, 38 & 39 WPJD304
36 WPJD309
Dallas, TX 35, 37, 38 & 39 WMT331
36 WMT340
Houston, TX 35, 37, 38 & 39 WMT330
36 WMT332
Washington, DC 35, 37, 38 & 39 WMT338
36 WMT312
San Francisco, CA 35 WMT336
Boston, MA 35, 37, 38 & 39 WMT333
36 WMT328
Atlanta, GA 35, 37, 38 & 39 WMT335
36 WMT317
San Diego, CA 35, 37, 38 & 39 WMF844
Minneapolis, MN 35, 37, 38 & 39 WMF845
36 WMT310
St. Louis, MO 35, 37, 38 & 39 WMF846
36 WMT324
Baltimore, MD 35, 37, 38 & 39 WMF850
Phoenix, AZ 35, 37, 38 & 39 WMF851
36 WMT309
Seattle, WA 35, 37, 38 & 39 WMF854
36 WMT323
Pittsburgh, PA 35, 37, 38 & 39 WMF852
36 WMT319
Denver, CO 36 WMT329
Miami, FL 35, 37, 38 & 39 WMT324
36 WMT327
Sch E-14
<PAGE>
Market 24 Ghz Channel(s) Call Sign
------ ----------------- ---------
Tampa, FL 35, 37, 38 & 39 WMF849
36 WMT308
Columbus, OH 36 WMT342
Cleveland, OH 35, 37, 38 & 39 WPJD853
36 WMT341
Portland, OR 35, 37, 38 & 39 WMF842
36 WMT321
San Jose, CA 35, 37, 38 & 39 WPJC396
Cincinnati, OH 35, 37, 38 & 39 WMF847
Kansas City, MO 35, 37, 38 & 39 WMF848
36 WMT325
Sacramento, CA 35, 37, 38 & 39 WMF843
36 WMT320
Milwaukee, WI 35, 37, 38 & 39 WMF840
36 WMT311
San Antonio, TX 35, 37, 38 & 39 WPJC397
36 WMT326
Indianapolis 35, 37, 38 & 39 WMF841
36 WMT316
Corresponding 18 Ghz Channels for all markets still
authorized to operate in 18 Ghz Band:
24 Ghz 18 Ghz
35 30
36 31
37 32
38 33
39 34
Sch E-15
<PAGE>
Teligent License Company II, L.L.C. Point-to-Multipoint DEMS Licenses
---------------------------------------------------------------------
Market 24 Ghz Channel(s) Call Sign
------ ----------------- ---------
Los Angeles, CA 35, 36, 37 & 38 WMT306
San Francisco, CA 35, 36, 37 & 38 WMT348
New York, NY 36 WMT304
Columbus, OH 37 WPNH318
Salt Lake City, UT 37 WPNH283
Orlando, FL 37 WPNH299
New Orleans, LA 37 WPNH288
Hartford, CT 38 WPNH295
Nashville, TN 37 WPNH325
Norfolk, VA 37 WPNH284
Memphis, TN 37 WPNH323
Jacksonville, FL 37 WPNH298
Oklahoma City, OK 39 WPNH319
Greensboro, NC 37 WPNH306
Louisville, KY 37 WPNH302
West Palm Beach, FL 37 WPNH300
Las Vegas, NV 39 WPNH313
Birmingham, AL 38 WPNH289
Austin, TX 37 WPNH324
Honolulu, HI 37 WPNH301
Dayton, OH 35 WPNH314
Albany, NY 37 WPNH311
Charlotte, NC 37 WPNH305
Richmond, VA 37 WPNH286
Tulsa, OK 37 WPNH320
Raleigh, NC 37 WPNH307
Fresno, CA 37 WPNH291
Tuscon, AZ 38 WPNH290
Allentown, PA 37 WPNH287
Ventura, CA 38 WPNH293
Syracuse, NY 37 WPNH317
Akron, OH 35 WPNH312
Greenville, SC 39 WPNH321
El Paso, TX 38 WPNH297
Stockton, CA 35 WPNH294
Newport News, VA 38 WPNG641
Santa Barbara, CA 38 WPNH292
Sch E-16
<PAGE>
Market 24 Ghz Channel(s) Call Sign
------ ----------------- ---------
Omaha, NE 37 WPNH308
Wilmington, DE 37 WPNH309
Albuquerque, NM 38 WPNH310
Springfield, MA 38 WPNH304
Baton Rouge, LA 38 WPNH303
Charleston, SC 38 WPNH322
New Haven, CT 37 WPNH296
Trenton, NJ 37 WPNH285
Buffalo, NY* 37 WPNH315
Rochester, NY* 37 WPNH316
Corresponding 18 Ghz Channels for all markets still
authorized to operate in 18 Ghz Band:
24 Ghz 18 Ghz
35 30
36 31
37 32
38 33
39 34
[FN]
- ----------
* Include the condition that operations "may not cause interference to any
authorized Canadian communication system and authority to operate is on a
secondary, non-interference basis to any authorized Canadian communication
system until Canadian coordination can be completed for primary operations."
</FN>
Sch E-17
<PAGE>
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(i) The Company, based on a certificate of good standing of the State of
Delaware, and is validly existing as a corporation in good standing under the
laws of the state of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement.
(iii) The Shares to be purchased by the Underwriters from the Company have
been duly authorized and validly issued and are fully paid and non-assessable.
(iv) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Registration Statement has been declared effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); and, to
the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission.
(vi) The information in the Registration Statement under Item 15, has
been reviewed by us and correctly describes the general effect of Section 102
and Section 145 of the Delaware General Corporation Law, as amended, and the
Company's charter and by-laws in all material respects.
(vii) To our knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(viii) To our knowledge neither the Company nor any Significant Subsidiary
is in violation of its charter or by-laws.
A-1
<PAGE>
(ix) To our knowledge, no filing with, or authorization, approval,
consent, license, order, registration or qualification of, any court or
governmental authority or agency, under the law, rules and regulations of the
United States of America or the General Corporation Law of the State of Delaware
(other than under the 1933 Act and the 1933 Act Regulations, which have been
obtained, or as may be required under the securities or blue sky laws of the
various states, and other than the Telecommunications Act of 1996, and the
published rules, regulations, decisions and orders of the Federal Communications
Commission (the "FCC") thereunder and any consent, approval, license, or
authorization of, or filing with, the FCC pursuant to the Telecommunications Act
of 1934, as to which we express no opinion) is necessary or required in
connection with the due authorization, execution and delivery of the
Underwriting Agreement, the issuance of the Shares by the Company or the
offering, sale or delivery of the Shares by the Underwriters.
(x) The execution, delivery and performance of the Underwriting
Agreement and the issuance and sale of the Shares thereunder and compliance by
the Company with its obligations under the Underwriting Agreement do not and
will not, whether with or without the giving of notice or lapse of time or both,
(i) conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(xi) of the Underwriting Agreement) under, or result in
the creation or imposition of any lien, charge or encumbrance on the Company's
credit agreement dated July 2, 1998, the indenture dated November 27, 1997 , the
indenture dated February 28, 1998 or the certificate of designation for the
Series A convertible preferred stock due 2014, or (ii) violate any of the
provisions of the charter or by-laws of the Company or any Significant
Subsidiary, or (iii) violate any applicable law, statute, rule, regulation
(other than under the 1933 Act and the 1933 Act Regulations, which have been
obtained, or as may be required under the securities or blue sky laws of the
various states, and other than the Telecommunications Act of 1996, and the
published rules, regulations, decisions and orders of the FCC thereunder and any
consent, approval, license, or authorization of, or filing with, the FCC
pursuant to the Telecommunications Act of 1934, as to which we express no
opinion), judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any Significant Subsidiary or any of their respective
properties, assets or operations. We do not express any opinion, however, as to
whether the execution, delivery or performance by the Company of the
Underwriting Agreement will constitute a violation of or a default under any
covenant, restriction or provision with respect to financial ratios or tests or
any aspect of the financial condition or results of operations of the Company
and its subsidiaries.
(xi) The Company is not an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the 1940 Act.
(xii) The statements made in the Prospectus under the caption "Certain
United States Federal Tax Consequences to Non-U.S. Holders", insofar as such
statements constitute a summary of the law, accurately describe the material
U.S. federal income and estate tax
A-2
<PAGE>
consequences of the ownership and disposition of the common stock by Non-U.S.
Holders subject to the qualifications contained therein.
Nothing has come to our attention that would lead us to believe that (x)
the Registration Statement or any amendment thereto, at the time it became
effective, or the Prospectus at the Closing Time or any supplement thereto,
excluding the documents incorporated, in such Registration Statement and
Prospectus by reference (in each case except for the financial statements and
other information of a statistical accounting, or financial nature included
therein, as to which no view need be expressed) were not appropriately
responsive in all material respects to the requirements of the Securities Act
and the rules and regulations of the Commission thereunder, (y) the Company's
annual report on Form 10-K for the year ended December 31, 1999, and the
Company's current report on Form 8-K filed on January 18, 2000, which have been
incorporated by reference in the Prospectus (except for financial statements and
supporting schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which no view need be expressed),
when they were filed with the Commission were not appropriately responsive in
all material respects to the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder, or (z) the Registration Statement at
the time such Registration Statement became effective (except for financial
statements and supporting schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which no view need
be expressed) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus at the Closing Time
(except for financial statements and supporting schedules and other financial
data included or incorporated by reference therein or omitted therefrom, as to
which no view need be expressed), included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-3
<PAGE>
Exhibit B
FORM OF REGULATORY OPINION
TO BE DELIVERED BY LAURENCE E. HARRIS,
GENERAL COUNSEL TO THE COMPANY PURSUANT TO SECTION 5(b)(ii)
(i) The Company's respective subsidiaries are duly authorized by the
Federal Communications Commission ("FCC") to hold the licenses identified in
Schedule E (the "Licenses"). The Licenses are in full force and effect and have
not been revoked, suspended, canceled or modified in any adverse way and, except
as set forth on Schedule E hereto, are not subject to any conditions or
requirements that are not generally imposed by the FCC upon the holders of such
licenses.
(ii) The Company has paid all fees and has made all reports and
filings, including tariffs applicable to its interstate service, required by the
FCC for the conduct of its businesses in the manner described in the Prospectus,
no further FCC authorizations are required by the Company to conduct its
business as described in the Prospectus, and there are no complaints,
investigations, protests, proceedings or petitions outstanding or to our
knowledge threatened at or by the FCC, formal or informal, against the Company
or its subsidiaries or the Licenses or any adverse judgments, decrees,
injunctions, or published orders of any court or the FCC naming the Company or
its subsidiaries that are likely to result in the revocation, suspension,
termination, non-renewal or material adverse modification of the Licenses or
prevent the Company or its subsidiaries from conducting its current business as
described in the Prospectus.
(iii) The execution and delivery of the Underwriting Agreements and the
consummation of the Offerings (as such terms are defined in the Prospectus) as
contemplated by the Prospectus do not violate the Communications Act of 1934, as
amended, including the Telecommunications Act of 1996 and, where applicable, the
published rules and regulations, decisions and orders of the FCC in effect on
the date hereof ("Communications Act").
(iv) All required governmental approvals, i.e, any consent, approval,
license or authorization of or filing with the FCC pursuant to the
Communications Act, have been obtained in connection with the consummation of
the Offerings and such consummation will not cause any cancellation,
termination, revocation, forfeiture or material impairment of any of the
Licenses or prevent the Company or its subsidiaries from conducting its current
business as described in the Prospectus.
B-1
<PAGE>
(v) The statements in the Prospectus insofar as such statements
constitute a summary of the rules, regulations, or proceedings of the FCC
conform in all material respects with such rules, regulations, or proceedings.
B-2
<PAGE>
Exhibit C
OPINION OF LAURENCE E. HARRIS
GENERAL COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)(ii)
(i) (A) The execution and delivery of the Underwriting Agreement by
the Company and the issue and sale of the Class A Common Stock contemplated
thereby, respectively, do not violate (1) the law, i.e. the rules, regulations
and applicable statutes governing the provision of telecommunications services,
of any State, or (2) any decree from any court, and (B) no authorizations of or
filings with any State regulatory authority having jurisdiction over the
telecommunications services provided by the Company or its subsidiaries are
necessary for the execution and delivery of the Underwriting Agreement by the
Company and the sale of the Class A Common Stock contemplated thereby,
respectively.
(ii) The Company has made all reports and filings and paid all fees
required by Law except where the failure to make such report or filing or pay
such fee would have no material adverse effect upon the prospects, condition,
financial or otherwise, or on the earnings, business, or operations of the
Company and its subsidiaries taken as a whole, and the Company has obtained all
certificates, orders, permits, licenses, authorizations, consents, and approvals
(collectively, "State Authorizations") from State regulatory authorities
necessary to conduct its current business as described in the Prospectus. The
Company has all necessary authorizations and/or tariffs on file in the States
and no further authority is required to be obtained by the Company from any such
State or any other state to conduct its telecommunications business as described
in the Prospectus.
(iii) The Company has not received any notice of proceedings relating
to the revocation or modification of any such State Authorizations, the effect
of which singly or in the aggregate would have a material adverse effect on the
prospects, condition, financial or otherwise, or on the earnings, business, or
operations of the Company and its subsidiaries taken as a whole.
(iv) (A) No decree or order of any State regulatory authority is
outstanding against the Company or its subsidiaries, and (B) no litigation,
proceeding, inquiry, or investigation has been commenced or threatened, and no
notice of violation or order to show cause has been issued, against the Company
or its subsidiaries before any State regulatory authority.
(v) The Company is conducting its business in accordance with its
State Authorizations, where applicable, and is not in violation of, or in
default under, any Law, the effect of which, singly or in the aggregate, would
have a material adverse effect on the prospects,
C-1
<PAGE>
condition, financial or otherwise, or on the earnings, business, or operations
of the Company and its subsidiaries taken as a whole.
(vi) The Company is conducting its business as described in the
Prospectus in part pursuant to licenses issued by the Federal Communications
Commission to the Company's subsidiaries (the "Licenses"). The Company is not in
violation of, or in default under, the Communications Act of 1934, as amended,
including the Telecommunications Act of 1996, or of the conditions of any of the
Licenses, the effect of which, singly or in the aggregate, would have a material
adverse effect on the prospects, condition, financial or otherwise, or on the
earnings, business, or operations of the Company and its subsidiaries taken as a
whole.
(vii) The statements set forth in the Prospectus, insofar as such
statements constitute a summary of the legal matters, documents, or proceedings
of State regulatory agencies with respect to telecommunications regulation
referred to therein, conform in all material respects with such matters,
documents, and proceedings.
C-2
<PAGE>
Exhibit D
OPINION OF LAURENCE E. HARRIS
GENERAL COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)(ii)
(i) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware. The Company is
duly qualified as a foreign corporation to transact business and to my knowledge
is in good standing or similar status, in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(ii) Each of the Significant Subsidiaries of the Company listed on
Schedule C of the Underwriting Agreement (the "Significant Subsidiaries") has
been duly formed or incorporated, as applicable, and is validly existing and in
good standing under the laws of the state of its incorporation. Based on my
review of the good standing certificates for all Significant Subsidiaries other
than Associated Communications of Deutschland GmbH, as to which I express no
opinion, (A) each of the Significant Subsidiaries is qualified or otherwise has
authority to do business and is in good standing or similar status, as a
corporation or limited liability company, as applicable, under the laws of each
Significant Subsidiaries' state of incorporation, and (B) each of such
Significant Subsidiaries has the corporate or limited liability company power
and authority, as applicable, to conduct its business as required and to own or
lease property. The outstanding equity interests or shares of capital stock, as
applicable, of each Significant Subsidiary have been duly authorized and, in the
case of Significant Subsidiaries that are corporations, are validly issued,
fully paid and non-assessable and, to my knowledge, are owned by the Company,
directly or indirectly, free and clear of any security interest, lien, pledge or
encumbrance other than pursuant to the Company's credit agreement dated July 2,
1998; to my knowledge, none of the outstanding shares of capital stock or
members' interests, as applicable, of any Significant Subsidiary was issued in
violation of the preemptive or other similar rights of any stockholder or
member, as applicable. The only "significant subsidiaries" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) are the Significant
Subsidiaries listed on Schedule C of the Underwriting Agreement.
(iii) The Company has the corporate power and corporate authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus and to perform all of its obligations under the Underwriting
Agreement.
(iv) To my knowledge except as set forth in the Prospectus, there is
not any pending or any threatened action, suit or proceeding to which the
Company or any subsidiary is a party, or to which the property of the Company or
any subsidiary is subject, before or brought
D-1
<PAGE>
by any governmental agency or body which could reasonably be expected to have a
Material Adverse Effect or which could reasonably be expected to materially and
adversely affect the transactions contemplated by the Underwriting Agreement and
the Company's obligations hereunder.
(v) The authorized, issued and outstanding capital stock of the
Company as of December 31, 1999 is as set forth in the Prospectus in the column
entitled "Historical" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to the Underwriting Agreement or pursuant to
reservations, agreements or employee benefit plans referred to in the Prospectus
or pursuant to the exercise of convertible securities or options referred to in
the Prospectus); the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
security holder of the Company.
(vi) The Shares issued and sold by the Company have been duly
authorized by the Company and, when delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, will be
validly issued, fully paid and non-assessable. To my knowledge, the Shares are
not subject to the preemptive or similar rights of any stockholder of the
Company.
(vii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The execution and delivery by the Company of the Underwriting
Agreement, and the performance by the Company of its obligations thereunder in
accordance with its terms, do not (i) constitute a violation of or a default
under any contract, agreement, mortgage, deed of trust, loan or credit
agreement, note or lease material to the business or financial condition of the
Company and the Subsidiaries taken as a whole and which have been filed as
exhibits to the Company's annual report on Form 10-K for the year ended December
31, 1999, other than the Company's credit agreement dated July 2, 1998, the
indenture dated November 27, 1997, the indenture dated February 28, 1998 and
the certificate of designation for the Series A convertible preferred stock due
2014 as to which I express no opinion ("Applicable Contracts"), or (ii) cause
the creation of any security interest or lien upon any of the property of the
Company or any Subsidiary pursuant to any Applicable Contract. I do not express
any opinion, however, as to whether the execution, delivery or performance by
the Company of the Underwriting Agreement will constitute a violation of or a
default under any covenant, restriction or provision with respect to financial
ratios or tests or any aspect of the financial condition or results of
operations of the Company and the Subsidiaries.
(ix) Neither the execution, delivery or performance by the Company of
the Underwriting Agreement nor the consummation by the Company of the
transactions
D-2
<PAGE>
contemplated therein will contravene any provision of any Applicable Law (as
hereinafter defined). As used herein, the term "Applicable Laws" means the
General Corporation Law of the State of Delaware and the laws, rules and
regulations of the United States of America that, in my experience, are normally
applicable to transactions of the type contemplated by the Underwriting
Agreement; provided, however, that such term does not include securities laws of
any jurisdiction or the rules and regulations of the National Association of
Securities Dealers, Inc.
(x) To my knowledge, except such as have been obtained, no
authorization, approval, consent or order of any court or governmental authority
or agency is legally required to be obtained by the Company under Applicable
Laws in connection with the execution and delivery by the Company of the
Underwriting Agreement and the performance by the Company of its obligations
thereunder (other than under the 1933 Act and the 1933 Act Regulations, which
have been obtained, or as may be required under the securities or blue sky laws
of the various states, and other than the Telecommunications Act of 1996, and
the published rules, regulations, decisions and orders of the Federal
Communications Commission (the "FCC") thereunder and any consent, approval,
license, or authorization of, or filing with, the FCC pursuant to the
Telecommunications Act of 1934, as amended, as to which I express no opinion),
except that I do not express any opinion as to any such authorization, approval,
consent or order which may have become applicable to the Company as a result of
the involvement of the Underwriters in the transactions contemplated by the
Underwriting Agreement because of their legal or regulatory status or because of
any other facts specifically pertaining to them.
(xi) To my knowledge, no default by the Company or any subsidiary
exists in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument that is described
or referred to in the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration Statement, except
any default that would not result in a Material Adverse Effect.
(xii) To my knowledge, there are no statutes, regulations, contracts or
other documents that are material to the Company that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(xiii) To my knowledge, except as described in the Prospectus, there are
no persons with registration rights to have any securities registered pursuant
to the Registration Statement.
D-3
<PAGE>
Exhibit E
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholder for the performance by the Selling
Shareholder of its obligations under the Underwriting Agreement or in the Power
of Attorney and Custody Agreement, or in connection with the offer, sale or
delivery of the Shares.
(ii) The Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Shareholder.
(iii) The execution, delivery and performance of the Underwriting
Agreement and the Power and the sale and delivery of the Shares and the
consummation of the transactions contemplated in the Underwriting Agreement and
in the Registration Statement and compliance by the Selling Shareholder with its
obligations under the Underwriting Agreement have been duly authorized by all
necessary action on the part of the Selling Shareholder and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under or result in the
creation or imposition of any tax, lien, charge or encumbrance upon the Shares
or any property or assets of the Selling Shareholder pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, license,
lease or other instrument or agreement to which the Selling Shareholder is a
party or by which it may be bound, or to which any of the property or assets of
the Selling Shareholder may be subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Selling Shareholder
, if applicable, or any law, administrative regulation, judgment or order of any
governmental agency or body or any administrative or court decree having
jurisdiction over the Selling Shareholder or any of its properties.
(iv) To the best of our knowledge, the Selling Shareholder has valid
and marketable title to the Shares to be sold by the Selling Shareholder
pursuant to the Underwriting Agreement, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind, and has
full right, power and authority to sell, transfer and deliver such Shares
pursuant to the Underwriting Agreement. By delivery of a certificate or
certificates therefor the Selling Shareholder will transfer to the Underwriters
(without notice of any defect in the title of the Selling Shareholder and who is
otherwise a bona fide purchaser for purposes of the Uniform
E-1
<PAGE>
Commercial Code) valid and marketable title to such Shares, free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto (except for financial statements
and schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which we need make no statement), at the
time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which we need
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
E-2
<PAGE>
Exhibit F
April __, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Re: Proposed Public Offering of Teligent, Inc. Class A Common Stock
---------------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder of Teligent, Inc.1, a Delaware corporation
(the "Company"), understands that, Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Goldman, Sachs & Co., Salomon Smith Barney Inc.,
Credit Suisse First Boston Corporation, Chase Securities Inc., Deutsche Bank
Securities Inc. and Lehman Brothers Inc.. (collectively, the "Representatives")
and each of the other Underwriters named in Schedule A hereto (collectively, the
"Underwriters") propose to enter into an Underwriting Agreement (the
"Underwriting Agreement") with the Company and Telcom - DTS Investors, L.L.C.,
the Selling Shareholder, providing for the public offering of shares (the
"Securities") of the Company's Class A common stock, par value $.01 per share
(the "Class A Common Stock"). In recognition of the benefit that such an
offering will confer upon the undersigned as a stockholder of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees with Merrill Lynch, on behalf of
all of the Underwriters that, during a period of 90 days from the date of the
Underwriting Agreement, the undersigned
[FN]
- ----------
1 The following individuals will not be subject to a lock-up for the
following amounts:
(1) Alex J. Mandl -- 200,000 Shares
(2) Kirby G. Pickle, Jr. -- 100,000 Shares
(3) Laurence E. Harris -- 60,000 Shares
(4) Steven F. Bell -- 40,000 Shares
</FN>
F-1
<PAGE>
will not, without the prior written consent of Merrill Lynch, directly or
indirectly, except as already disclosed in the Company's filings with the
Securities and Exchange Commission (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant for the sale of, or otherwise dispose
of or transfer any shares of the Company's Class A Common Stock (the "Common
Stock"), or any securities convertible into or exchangeable or exercisable for
Common Stock, whether now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise.
Very truly yours,
Signature:
Print Name:
F-2
